Are Postnuptial Agreements Enforceable?

  •   |   Meghan Freed

Blue border with the words "postnups & enforceability" in black letteringYou may wonder, “Are postnuptial agreements enforceable in Connecticut?”

First, postnuptial agreements are valid in Connecticut because they serve a few positive purposes.  First, they can protect the rights of third parties, like children from a previous relationship. Second, postnups can also reduce anxiety by establishing legal rights and responsibilities in case of a future divorce. In other words, Connecticut allows postnuptial agreements.

However, if you have a postnup but ultimately decide to divorce, will the court enforce your postnuptial agreement?  It’s critical to know when Connecticut courts will — and won’t — enforce postnuptial agreements.

Read on to learn more.

Background on Postnups

Connecticut courts use a higher level of scrutiny when evaluating postnups than other contracts, including prenups.  Given the nature of their relationship, Connecticut is concerned that spouses might not be as careful entering into a postnuptial agreement as they would another contract.  In addition, Connecticut is mindful that this creates a higher likelihood that one spouse will exploit the other. As a result, courts apply more scrutiny with postnups than they do with prenups or other contracts.

Read: What Is a Postnup?

Postnup Law

Contact Law and Postnup Enforceability

First, a postnuptial agreement must meet the same requirements that apply to all contracts to be enforceable.  If a postnuptial agreement doesn’t meet the basic principles of contract law, it is considered invalid.  Therefore, the court doesn’t need to assess any additional requirements to determine its validity.

A postnuptial agreement, unlike a prenup, requires adequate consideration, according to general contract principles, to be enforced. It’s possible adequate consideration can come from mutual releases of each spouse’s interest in the other’s estate. However, whether a spouse’s agreement to stay married and not divorce is considered adequate consideration remains unclear.

If a postnup meets the standard of a valid contract, the agreement’s terms must be (1) fair and equitable when signed and (2) can’t be unconscionable at the time of divorce.

Read: Prenup vs Postnup

Postnuptial Agreement Fair and Equitable at Execution

Generally speaking, a postnuptial agreement is fair and equitable at execution if the contract is made voluntarily and without undue influence, fraud, coercion, duress, or similar defect. In addition, each spouse must be given full, fair, and reasonable disclosure of the amount, character, and value of the joint and separate property and all the other spouse’s financial obligations and income.

The court considers the circumstances of each case to determine whether a postnuptial agreement was fair and equitable at the time of signing. The Connecticut Supreme Court has provided guidance on factors that a court may (but does not have to) consider when making this determination.

These factors include the following:

  • nature and complexity of the agreement
  • assets each spouse brought to the marriage
  • parties’ ages, education, employment, and prior marriages, and
  • any other factors affecting their understanding of the agreement’s provisions.

Additionally, the court may consider the amount of time each spouse had to consider the agreement’s terms and whether they had access to independent legal advice before they agreed to the contract terms.

Read: Can You Get a Prenup After Marriage?

Unconscionable at the Time of Divorce

To be enforceable, a prenup cannot be unconscionable when the parties divorce.  The court also considers all the circumstances when determining whether a postnuptial agreement is unconscionable at the time of dissolution.  It’s important to note that just because a postnuptial agreement is unfair or unequal doesn’t mean it is automatically unconscionable. For example, spouses can agree to divide their assets unevenly in their postnup, and the fact that some provisions may later seem unwise doesn’t make it unconscionable. That said, unanticipated changes in the marriage, like moving out of state, having a child, or losing a job, may make the agreement unconscionable, and, therefore, unenforceable.

Next Steps

Check out our Divorce Information and Facts for more information about Connecticut divorce and family law. Also, if you have questions or want to learn more about whether your postnuptial agreement is enforceable or how our divorce attorneys can help you with postnup enforceability, please get in touch with us here.

Freed Marcroft LLC

Freed Marcroft LLC